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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JOHN PATRICK MOORE, 

 Plaintiff, 

 vs. Civil Action 2:12-cv-609 

 Judge Marbley 

 Magistrate Judge King 

BRENT CRUSE, et al., 

 

 Defendants. 

REPORT AND REOMMENDATION

 John Patrick Moore (“Plaintiff”), now an inmate at the Southern 

Ohio Correctional Facility, filed this civil rights action under 42 

U.S.C. § 1983 on July 10, 2012 against Brent Cruse, Josh Pfeifer, John 

Thornhill, and Jacob Walker (collectively, “Defendants”). Complaint, 

Doc. No. 5. The Complaint asserts claims under § 1983 for violations 

of the Eighth and First Amendments to the United States Constitution. 

Plaintiff also asserts claims of conspiracy and defamation. Id. at 

pp. 5, 5A, 5C. 

 This matter is before the Court for consideration of Defendants 

Cruse, Pfeifer, Thornhill, and Walker’s Motion for Summary Judgment

(“Motion for Summary Judgment”), Doc. No. 31. Plaintiff was expressly 

advised by the Court of the consequences of his failure to respond to 

the motion, Opinion and Order, Doc. No. 37, p. 4, but has nevertheless 

filed no response to the Motion for Summary Judgment. For the reasons 

that follow, it is RECOMMENDED that Defendants’ Motion for Summary 

Judgment be GRANTED. 

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I. Background

Plaintiff alleges that he was at Clever Gym of the Chillicothe 

Correctional Institution wearing “religious headgear”1

 when he was 

stopped by Defendant Cruse. Complaint, p. 5. Upon observing 

Plaintiff wearing religious headgear in the gym, Defendant Cruse 

“informed [Plaintiff] that he is not permitted to wear headgear in the 

gym.” Declaration of Brent Cruse, Doc. No. 39-2, ¶ 6. Defendant Cruse 

“further informed Moore that in order to wear religious headgear in 

the gym he must provide the proper religious affiliation paperwork.” 

Id. Plaintiff then “became irate, stated ‘fuck you,’ and attempted to 

exit the building. Id. at ¶ 7. Defendant Cruse gave Plaintiff “a 

direct order to stop, and he refused.” Id at ¶ 8. Defendant Cruse 

“attempted to place Inmate Moore on the wall to be handcuffed. At 

that time Moore pulled away and punched [Defendant Cruse] in the left 

side of [his] face.” Id. at ¶ 9. 

Plaintiff alleges that Defendant Cruse “proceeded to attempt to 

slam him against the wall and then attempted to remove [Plaintiff’s] 

koofi from [Plaintiff’s] head. Complaint, p. 5. Plaintiff “evaded 

[Defendant Cruse’s] attempt and a struggle ensued.” Id. Defendant 

Cruse “placed Moore on the floor and attempted a handcuff technique 

with the assistance of [Defendants].” Id. Plaintiff “continued to 

physically resist [Defendants’] orders and resisted [their] attempts 

																																																								

1 In this case, religious headgear refers to a “Muslim (‘koofi’).” 

Complaint, p. 5. The word “is properly spelled kufi.” Wilson v. Moore, 270 

F. Supp. 2d 1328, 1345 n. 16 (N.D. Fla. 2003). “The Kufi cap is a small, 

round, head covering with religious significance for Muslims.” Muhammad v. 

Lynaugh, 966 F.2d 901, 902 n. 1 (5th Cir. 1992). 

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to place handcuffs on him.” Declaration of John Thornhill, Doc. No. 

31-8, ¶ 7; See also Declaration of Jacob Walker, Doc. No. 31-9, ¶ 6; 

Declaration of Josh Pfeifer, Doc. No. 39-3, ¶ 6; Declaration of Brent 

Cruse, ¶ 10. 

Defendant Thornhill “assisted [Defendant] Cruse and other 

officers in order to control [Plaintiff’s] legs while he was placed on 

the gym floor.” Declaration of John Thornhill, ¶ 6. Defendant 

Pfeifer “was eventually able to secure Inmate Moore’s right arm and 

placed handcuffs on both arms.” Declaration of Josh Pfeifer, ¶ 7. 

Defendant Walker assisted in “placing Inmate Moore on the ground” and 

“assisted in escorting him to Post 5.” Declaration of Jacob Walker, 

¶¶ 6, 8. Each Defendant states that he “used only the amount of force 

that was necessary to restrain [Plaintiff] while he physically 

resisted [their] orders and attempts to place handcuffs on him.” 

Declaration of Jacob Walker, ¶ 10; See also Declaration of John 

Thornhill, ¶ 9; Declaration of Josh Pfeifer, ¶ 9; Declaration of Brent 

Cruse, ¶ 12. Defendants did not “make any comments to [Plaintiff] 

regarding his religious beliefs.” Declaration of Jacob Walker, ¶ 11; 

See also Declaration of John Thornhill, ¶ 11; Declaration of Josh 

Pfeifer, ¶ 10; Declaration of Brent Cruse, ¶ 13. Defendant Cruse “did 

not attempt to remove Inmate Moore’s headgear.” Declaration of Brent 

Cruse, ¶ 13. 

As a result of the incident, “the left side of [Defendant 

Cruse’s] face was injured.” Declaration of Brent Cruse, ¶ 11; See 

also Use of Force Committee Report (“UOFC Record”), attached to Motion 

for Summary Judgment as Exhibit C-2, at p. 35. The Medical Exam 

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Report indicates that Plaintiff’s eye was bruised and he had facial 

abrasions. UOFC Record, p. 31. Following the incident, “a Use of 

Force Committee determined that the force utilized by [Defendants] in 

order to control the incident was justified, appropriate, and not 

excessive.” Declaration of Brent Cruse, ¶ 14; See also UOFC Record, 

p. 3 (“[I]t is the conclusion of this committee that the force 

utilized in order to control this incident was justified and not 

inappropriate and/or excessive.”). The Rules Infraction Board found 

Plaintiff guilty of physical resistance to a direct order, 

disobedience of a direct order, and causing, or attempting to cause, 

physical harm to another. Disposition of the Rules Infraction Board

(“RIB Record”), attached to Motion for Summary Judgment at Exhibit C1, at p. 1 (citing Ohio Admin. Code 5120-9-06(C)(4), (20), (21)). 

II. Standard of Review

The standard for summary judgment is well established. This 

standard is found in Rule 56 of the Federal Rules of Civil Procedure, 

which provides that “[t]he court shall grant summary judgment if the 

movant shows that there is no genuine dispute as to any material fact 

and that the movant is entitled to judgment as a matter of law.” Fed. 

R. Civ. P 56(a). In making this determination, the evidence “must be 

viewed in the light most favorable” to the non-moving party. Adickes 

v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Summary judgment will 

not lie if the dispute about a material fact is genuine, “that is, if 

the evidence is such that a reasonable jury could return a verdict for 

the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248 (1986). However, summary judgment is appropriate if the opposing 

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party “fails to make a showing sufficient to establish the existence 

of an element essential to that party’s case, and on which that party 

will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 

477 U.S. 317, 322 (1986). The “mere existence of a scintilla of 

evidence in support of the [opposing party’s] position will be 

insufficient; there must be evidence on which the jury could 

reasonably find for the [opposing party].” Anderson, 477 U.S. at 252. 

The “party seeking summary judgment always bears the initial 

responsibility of informing the district court of the basis for its 

motion, and identifying those portions” of the record which 

demonstrate “the absence of a genuine issue of material fact.” 

Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving party who “must set forth specific facts showing that there is 

a genuine issue for trial.” Anderson, 477 U.S. at 250 (quoting Fed. 

R. Civ. P. 56(e)). “Once the moving party has proved that no material 

facts exist, the non-moving party must do more than raise a 

metaphysical or conjectural doubt about issues requiring resolution at 

trial.” Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th 

Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574, 586 (1986)). 

III. Discussion

 As noted supra, Plaintiff has not responded to Defendants’ Motion 

for Summary Judgment. The facts stated in the affidavits and other 

papers submitted in support of the Motion for Summary Judgment will 

therefore be accepted as true by the Court. See Fed. R. Civ. P. 

56(c). 

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Plaintiff brings this action under 42 U.S.C § 1983, which 

provides in pertinent part: 

Every person who, under color of any statute, ordinance, 

regulation, custom, or usage, of any State or Territory or 

the District of Columbia, subjects, or causes to be 

subjected, any citizen of the United States or other person 

within the jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party injured 

in an action at law, suit in equity, or other proper 

proceeding for redress . . . . 

42 U.S.C § 1983. A prima facie case under § 1983 requires evidence of 

(1) conduct by an individual acting under color of state law that 

causes (2) the deprivation of a right secured by the Constitution or 

laws of the United States. Day v. Wayne Cnty. Bd. of Auditors, 749 

F.2d 1199, 1202 (6th Cir. 1984) (citing Parratt v. Taylor, 451 U.S. 

527, 535 (1981)). Because § 1983 is a method for vindicating federal 

rights, and is not itself a source of substantive rights, the first 

step in an action under § 1983 is to identify the specific 

constitutional right allegedly infringed. Albright v. Oliver, 510 

U.S. 266, 271 (1994). 

 Plaintiff asserts claims under § 1983 for violations of the 

Eighth and First Amendments to the United States Constitution; he also 

asserts claims of conspiracy and defamation. Each claim will be 

discussed in turn. 

A. Eighth Amendment Excessive Force Claim 

Plaintiff brings an excessive force claim under the Eighth 

Amendment, which applies to the states through the Due Process Clause 

of the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 

665 (1962). The Eighth Amendment prohibits the infliction of “cruel 

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and unusual punishments.” U.S. Const. amend. VIII. To constitute an 

excessive force claim under the Eighth Amendment, “the offending 

conduct must reflect an ‘unnecessary and wanton infliction of pain.’” 

Moore v. Holbrook, 2 F.3d 697, 700 (6th Cir. 1993) (quoting Ingraham 

v. Wright, 430 U.S. 651, 670 (1977)). 

A claim of excessive force has both an objective and subjective 

component. Id. (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). 

The subjective component requires that the “offending conduct . . . be 

wanton.” Wilson, 501 U.S. at 302. “Whether the measure taken 

inflicted unnecessary and wanton pain and suffering turns on ‘whether 

force was applied in a good faith effort to maintain or restore 

discipline or maliciously and sadistically for the very purpose of 

causing harm.’” Whitley v. Albers, 475 U.S. 312, 320—21 (1986) 

(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir. 1973)). 

“Factors to consider in determining whether the use of force was 

wanton and unnecessary include the extent of the injury suffered by an 

inmate, ‘the need for application of force, the relationship between 

that need and the amount of force used, the threat reasonably 

perceived by the responsible officials, and any efforts made to temper 

the severity of the forceful response.’” Combs v. Wilkinson, 315 F.3d 

548, 557 (6th Cir. 2002) (quoting Hudson v. McMillian, 503 U.S. 1, 7 

(1992)). 

In the case presently before the Court, Plaintiff was given a 

“direct order to stop and he refused” and “attempted to exit the 

building.” Declaration of Brent Cruse, ¶ 7—8. Defendant Cruse 

“attempted to place Inmate Moore on the wall to be handcuffed,” at 

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which point Plaintiff “punched [Defendant Cruse] in the left side of 

[his] face.” Id at ¶ 9. Defendant Thornhill then “assisted 

[Defendant] Cruse and other officers in order to control [Plaintiff’s] 

legs while he was placed on the gym floor.” Declaration of John 

Thornhill, ¶ 6. Defendant Pfeifer “was eventually able to secure 

Inmate Moore’s right arm and placed handcuffs on both arms.” 

Declaration of Josh Pfeifer, ¶ 7. Defendant Walker assisted in 

“placing Inmate Moore on the ground” and “assisted in escorting him to 

Post 5.” Declaration of Jacob Walker, ¶¶ 5, 8. Plaintiff’s injuries 

included a bruised eye and facial abrasions, while Defendant Walker 

suffered a hand injury and Defendant Cruse suffered injuries to the 

ear, head, and knee. UOFC Record, pp. 31, 33, 35. 

In analyzing the Defendants’ conduct under the factors 

articulated above, it is apparent that force was applied in “a good 

faith effort to maintain or restore discipline” and that the force 

used by each Defendant was justified by a legitimate penological 

concern for order within the prison. See Whitley, 475 U.S. at 320—21. 

There was a need for application of force based on the threat that 

Plaintiff posed to prison discipline and security after Plaintiff hit 

Defendant Cruse in the face. Declaration of Brent Cruse, ¶ 9. 

Moreover, Plaintiff demonstrated a clear disregard for direct orders 

in refusing Defendant Cruse’s “direct order to stop” and “physically 

resist[ing] [Defendants’] direct orders to comply.” Declaration of 

Brent Cruse, ¶¶ 8, 10. As Plaintiff physically resisted, it required 

the efforts of four Defendants to control Plaintiff’s legs, place him 

on the ground, and handcuff him before escorting him from the 

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premises. Declaration of John Thornhill, ¶ 6; Declaration of Josh 

Pfeifer, ¶ 7; Declaration of Jacob Walker, ¶¶ 5, 8. The eye bruise 

and facial abrasions suffered by Plaintiff were relatively non-severe. 

The amount of force used was proportionate to the threat posed by 

Plaintiff. Based on the forgoing analysis, there is no evidence that 

Defendants’ actions “inflicted unnecessary and wanton pain and 

suffering” on Plaintiff; to the contrary, the Court concludes that 

Defendants applied force “in a good faith effort to restore 

discipline.” See Whitley, 475 U.S. 320—21. 

The objective component of an Eighth Amendment claim “requires 

that the pain be serious.” Moore, 2 F.3d at 700. This objective 

inquiry is “contextual and responsive to contemporary standards of 

decency;” however, not “every malevolent touch by a prison guard gives 

rise to a federal cause of action.” Hudson, 503 U.S. at 8—9 (quoting 

Johnson, 481 F.2d at 1033). In addition to looking at the seriousness 

of the injury, a court must look to “the nature of the force.” 

Wilkins v. Gaddy, 559 U.S. 34, 34 (2010) (citing Hudson, 503 U.S. at 

9). 

Because prison officials “must make their decisions in 

haste, under pressure, and frequently without the luxury of 

a second chance,” we must grant them “wide-ranging 

deference in the adoption and execution of policies and 

practices that in their judgment are needed to preserve 

internal order and discipline and to maintain institutional 

security.” 

Combs, 315 F.3d at 557 (quoting Hudson, 503 U.S. at 6). 

In the case presently before the Court, the objective component 

of the excessive force standard has not been satisfied. The 

uncontroverted record establishes that Plaintiff punched Defendant 

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Cruse in the face and “continued to physically resist [Defendants’] 

orders and [their] attempts to place handcuffs on him.” Declaration of 

John Thornhill, ¶ 7. Defendant Thornhill “assisted [Defendant] Cruse 

and other officers in order to control [Plaintiff’s] legs while he was 

placed on the gym floor.” Id. at ¶ 6. Defendant Pfeifer “was 

eventually able to place handcuffs on [Plaintiff]” and Defendant 

Walker “assisted in escorting him to Post 5.” Declaration of Jacob 

Walker, ¶ 7—8. Plaintiff’s injuries were, as noted supra, relatively 

minor. UOFC Record, p. 31. 

Plaintiff’s relatively minor injuries were a result of 

Defendants’ efforts to maintain prison safety and security; therefore, 

it is reasonable to conclude that “the force used by Defendants was 

minimal and proper.” See Quinn v. Tackett, No. 1:10-CV-590, 2013 WL 

5353053, at *5 (S.D. Ohio Sept. 24, 2013). Indeed, there is no 

evidence that Defendants used excessive force or more force than was 

necessary under the circumstances. In short, Plaintiff has not 

presented “a genuine issue of material fact regarding the objective 

seriousness of the harm inflicted on him” on his Eighth Amendment 

excessive force claim. See id. Defendants are therefore entitled to 

summary judgment on this claim. 

B. First Amendment Free Exercise Claim 

Plaintiff alleges that Defendants violated his rights under the 

First Amendment when Defendant Cruse told Plaintiff that he had “to 

have paperwork” for his religious headgear (specifically, a “koofi”). 

Complaint, p. 5. The First Amendment, which is applicable to the 

states through the Fourteenth Amendment, provides that “Congress shall 

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make no law respecting an establishment of religion, or prohibiting 

the free exercise thereof . . . .” U.S. Const. amend. I. “Prisoners 

retain the First Amendment right to the free exercise of their 

religion.” Hayes v. Tennessee, 424 F. App’x 546, 549 (6th Cir. 2011) 

(citing Walker v. Mintzes, 771 F.2d 920, 929 (6th Cir. 1985)). 

However, “[i]t is well-settled that prisoners' rights under the Free 

Exercise Clause [of the First Amendment] may be subject to reasonable 

restrictions.” Weinberger v. Grimes, No. 07–6461, 2009 WL 331632, at 

*4 (6th Cir. Feb. 10, 2009) (citing O'Lone v. Estate of Shabazz, 482 

U.S. 342, 352 (1987); Abdur–Rahman v. Mich. Dep't of Corr., 65 F.3d 

489, 491 (6th Cir. 1995)). Prisoners’ First Amendment rights are “not 

violated if the challenged polices [are] reasonably related to 

legitimate penological interests.” Id. (citing Turner v. Safley, 482 

U.S. 78, 89 (1987); Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir. 

2005)). 

 In the case presently before the court, Defendants’ actions did 

not unconstitutionally infringe Plaintiff’s free exercise of religion. 

Significantly, Defendant Cruse did not prohibit Plaintiff from all use 

of religious headgear; rather, Defendant Cruse informed Plaintiff that 

“in order to wear religious headgear in the gym he must provide the 

proper religious affiliation paperwork.” Declaration of Brent Cruse, 

¶ 6. This requirement did not substantially burden Plaintiff’s 

freedom to wear the religious headgear. See Treesh v. Bobb-Itt, No. 

2:10-cv-211, 2011 WL 3837099, at *4 (S.D. Ohio Aug. 29, 2011). 

A prison regulation requiring paperwork for religious headgear is 

reasonably related to legitimate penological interests. See 

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Weinberger, 2009 WL 331632, at *4. “The needs of the institution and 

penological objectives must be balanced against the right of the 

individual prisoner.” Jihaad v. O’Brien, 645 F.2d 556, 564 (6th Cir. 

1981). Allowing inmates to wear religious headgear in areas outside 

their cells and during activities other than religious services 

“conceivably could undermine the [prison’s] legitimate penological 

interests, primarily its overriding concern for prison security.” 

Muhammad v. Lynaugh, 966 F.2d 901, 903 (5th Cir. 1992) (holding that 

“prison regulations restricting the use of Kufi caps and religious 

insignia bore reasonable relationship to legitimate penological 

interest of prison security.”). 

 In sum, Plaintiff’s First Amendment claim fails for two reasons. 

First, Plaintiff has presented no evidence that his free exercise of 

religion was substantially burdened. Second, a requirement that an 

inmate request and obtain permission in order to wear religious 

headgear is “reasonably related to legitimate penological interests.” 

See Turner, 482 U.S. at 78. Under these circumstances, there is no 

genuine dispute as to any material fact on this claim and Defendants 

are entitled to summary judgment. See Fed. R. Civ. P 56(a). 

C. Conspiracy Claim 

 Plaintiff alleges that Defendants were “gunning for [him],” 

Complaint, p. 5B, and that he was “made aware” that he “should ‘watch 

out’” and that “this incident was an obvious set up by officers.” Id. 

at 5A, 5B. In order to establish a civil conspiracy claim under 42 

U.S.C. § 1983, a plaintiff must show that there was a single plan to 

deprive plaintiff of his constitutional rights, that the alleged 

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coconspirator shared in the general conspiratorial objective, and that 

an overt act was committed in furtherance of the conspiracy that 

caused injury to the complainant. Bazzi v. City of Dearborn, 658 F.3d 

598, 602 (6th Cir. 2011)(citing Hooks v. Hooks, 771 F.2d 935, 944 (6th 

Cir. 1985)). “Vague and conclusory allegations unsupported by material 

facts are insufficient to state a [§ 1983 civil conspiracy] claim.” 

Hamilton v. City of Romulus, 409 F. App’x 826, 835 (6th Cir. 2010) 

(citing Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003)). 

 Because, for the reasons stated supra, Plaintiff has failed to 

establish a deprivation of his constitutional rights, it follows that 

he cannot established an actionable claim for civil conspiracy under 

42 U.S.C. § 1983. Defendants are therefore entitled to judgment as a 

matter of law on this claim. 

D. Defamation Claim 

 Plaintiff also asserts a defamation claim, alleging that he “was 

charged with assaulting [D]efendant Cruse in an attempt to further 

take the blame off of the defendants.” Complaint, p. 5C. However, it 

is well-settled that defamation, without more, does not state a claim 

under 42 U.S.C. § 1983. Paul v. Davis, 424 U.S. 693 (1976). 

“‘Reputation alone, apart from some more tangible interests,’ [is] 

neither liberty nor property by itself sufficient to invoke the 

procedural protection of the Due Process Clause.” Naegele Outdoor 

Advertising Co. of Louisville, a Div. of Naegele, Inc. v. Moulton, 773 

F.2d 692, 701 (quoting Paul v. Davis, 424 U.S. 693). Plaintiff’s 

conclusory allegation of defamation is insufficient to state a claim 

under 42 U.S.C. § 1983. 

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 Moreover, Plaintiff may not pursue a state law claim of 

defamation against Defendants unless and until the Ohio Court of 

Claims determines that these state employees are not entitled to civil 

immunity under O.R.C. § 9.86. See O.R.C. § 2743.02(F); Haynes v. 

Marshall, 887 F.2d 700, 704 (6th Cir. 1989)(state employees enjoy 

immunity from suit in a claim under Ohio law); Johns v. University of 

Cincinnati Med. Assocs., 804 N.E.2d 19, 24 (Ohio 2004). 

In short, Defendants are entitled to judgment as a matter of law 

on this claim. See Fed. R. Civ. P 56(a). 

It is therefore RECOMMENDED that Defendants’ Motion for Summary 

Judgment, Doc. No. 31, be GRANTED. 

 

If any party seeks review by the District Judge of this Report 

and Recommendation, that party may, within fourteen (14) days, file 

and serve on all parties objections to the Report and Recommendation, 

specifically designating this Report and Recommendation, and the part 

thereof in question, as well as the basis for objection thereto. 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections 

must be filed within fourteen (14) days after being served with a copy 

thereof. Fed. R. Civ. P 72(b). 

The parties are specifically advised that failure to object to 

the Report and Recommendation will result in a waiver of the right to 

de novo review by the District Judge and of the right to appeal the 

decision of the District Court adopting the Report and Recommendation. 

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of 

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Teachers. Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United 

States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

December 13, 2013 s/ Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge 

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